"Thank you, Dean Rodriguez, for your kind words, and for the
outstanding leadership that you provide – not only for this academic
campus, but also for our nation’s legal community.
It is a privilege to be with you today – and to be among the
distinguished faculty members, staff, alumni, and students who make
Northwestern such an extraordinary place.

For more than 150 years, this law school has served as a training ground
for future leaders; as a forum for critical, thoughtful debate; and as a
meeting place to consider issues of national concern and global
consequence.
This afternoon, I am honored to be part of this tradition.
And I’m grateful for the opportunity to join with you in
discussing a defining issue of our time – and a most critical
responsibility that we share: how we will stay true to America’s
founding – and enduring – promises of security, justice and liberty.

Since this country’s earliest days, the American people have risen to this challenge – and all that it demands.
But, as we have seen – and as President John F. Kennedy may
have described best – “In the long history of the world, only a few
generations have been granted the role of defending freedom in its hour
of maximum danger.”

Half a century has passed since those words were spoken, but our nation
today confronts grave national security threats that demand our constant
attention and steadfast commitment.
It is clear that, once again, we have reached an “hour of danger.”

We are a nation at war. And, in this war, we face a nimble and determined enemy that cannot be underestimated.

Like President Obama – and my fellow members of his national security
team – I begin each day with a briefing on the latest and most urgent
threats made against us in the preceding 24 hours.
And, like scores of attorneys and agents at the Justice
Department, I go to sleep each night thinking of how best to keep our
people safe.

I know that – more than a decade after the September 11th
attacks; and despite our recent national security successes, including
the operation that brought to justice Osama bin Laden last year – there
are people currently plotting to murder Americans, who reside in distant
countries as well as within our own borders.
Disrupting and preventing these plots – and using every
available and appropriate tool to keep the American people safe – has
been, and will remain, this Administration’s top priority.

But just as surely as we are a nation at war, we also are a nation of
laws and values. Even when under attack, our actions must always be
grounded on the bedrock of the Constitution – and must always be
consistent with statutes, court precedent, the rule of law and our
founding ideals.
Not only is this the right thing to do – history has shown that
it is also the most effective approach we can take in combating those
who seek to do us harm.

This is not just my view.
My judgment is shared by senior national security officials across the government.
As the President reminded us in 2009, at the National Archives
where our founding documents are housed, “[w]e uphold our most cherished
values not only because doing so is right, but because it strengthens
our country and it keeps us safe.
Time and again, our values have been our best national security asset.”
Our history proves this.
We do not have to choose between security and liberty – and we will not.

Today, I want to tell you about the collaboration across the government
that defines and distinguishes this Administration’s national security
efforts.
I also want to discuss some of the legal principles that guide –
and strengthen – this work, as well as the special role of the
Department of Justice in protecting the American people and upholding
the Constitution.

Before 9/11, today’s level of interagency cooperation was not commonplace.
In many ways, government lacked the infrastructure – as well as
the imperative – to share national security information quickly and
effectively.
Domestic law enforcement and foreign intelligence operated in largely independent spheres.
But those who attacked us on September 11th chose both military and civilian targets.
They crossed borders and jurisdictional lines.
And it immediately became clear that no single agency could
address these threats, because no single agency has all of the necessary
tools.

To counter this enemy aggressively and intelligently, the government had
to draw on all of its resources – and radically update its operations.
As a result, today, government agencies are better postured to
work together to address a range of emerging national security threats.
Now, the lawyers, agents and analysts at the Department of
Justice work closely with our colleagues across the national security
community to detect and disrupt terrorist plots, to prosecute suspected
terrorists, and to identify and implement the legal tools necessary to
keep the American people safe.
Unfortunately, the fact and extent of this cooperation are
often overlooked in the public debate – but it’s something that this
Administration, and the previous one, can be proud of.

As part of this coordinated effort, the Justice Department plays a key
role in conducting oversight to ensure that the intelligence community’s
activities remain in compliance with the law, and, together with the
Foreign Intelligence Surveillance Court, in authorizing surveillance to
investigate suspected terrorists.
We must – and will continue to – use the intelligence-gathering
capabilities that Congress has provided to collect information that can
save and protect American lives.
At the same time, these tools must be subject to appropriate
checks and balances – including oversight by Congress and the courts, as
well as within the Executive Branch – to protect the privacy and civil
rights of innocent individuals.
This Administration is committed to making sure that our surveillance programs appropriately reflect all of these interests.

Let me give you an example.
Under section 702 of the Foreign Intelligence Surveillance Act,
the Attorney General and the Director of National Intelligence may
authorize annually, with the approval of the Foreign Intelligence
Surveillance Court, collection directed at identified categories of
foreign intelligence targets, without the need for a court order for
each individual subject.
This ensures that the government has the flexibility and
agility it needs to identify and to respond to terrorist and other
foreign threats to our security.
But the government may not use this authority intentionally to
target a U.S. person, here or abroad, or anyone known to be in the
United States.

The law requires special procedures, reviewed and approved by the
Foreign Intelligence Surveillance Court, to make sure that these
restrictions are followed, and to protect the privacy of any U.S.
persons whose nonpublic information may be incidentally acquired through
this program.
The Department of Justice and the Office of the Director of
National Intelligence conduct extensive oversight reviews of section 702
activities at least once every sixty days, and we report to Congress on
implementation and compliance twice a year.
This law therefore establishes a comprehensive regime of oversight by all three branches of government.
Reauthorizing this authority before it expires at the end of
this year is the top legislative priority of the Intelligence Community.

But surveillance is only the first of many complex issues we must navigate.
Once a suspected terrorist is captured, a decision must be made
as to how to proceed with that individual in order to identify the
disposition that best serves the interests of the American people and
the security of this nation.

Much has been made of the distinction between our federal civilian courts and revised military commissions.
The reality is that both incorporate fundamental due process
and other protections that are essential to the effective administration
of justice – and we should not deprive ourselves of any tool in our
fight against al Qaeda.

Our criminal justice system is renowned not only for its fair process; it is respected for its results.
We are not the first Administration to rely on federal courts to prosecute terrorists, nor will we be the last.
Although far too many choose to ignore this fact, the previous
Administration consistently relied on criminal prosecutions in federal
court to bring terrorists to justice.
John Walker Lindh, attempted shoe bomber Richard Reid, and 9/11
conspirator Zacarias Moussaoui were among the hundreds of defendants
convicted of terrorism-related offenses – without political controversy –
during the last administration.

Over the past three years, we’ve built a remarkable record of success in terror prosecutions.
For example, in October, we secured a conviction against Umar
Farouk Abdulmutallab for his role in the attempted bombing of an
airplane traveling from Amsterdam to Detroit on Christmas Day 2009.
He was sentenced last month to life in prison without the possibility of parole.
While in custody, he provided significant intelligence during debriefing sessions with the FBI.
He described in detail how he became inspired to carry out an
act of jihad, and how he traveled to Yemen and made contact with Anwar
al-Aulaqi, a U.S. citizen and a leader of al Qaeda in the Arabian
Peninsula.
Abdulmutallab also detailed the training he received, as well
as Aulaqi’s specific instructions to wait until the airplane was over
the United States before detonating his bomb.

In addition to Abdulmutallab, Faizal Shahzad, the attempted Times Square
bomber, Ahmed Ghailani, a conspirator in the 1998 U.S. embassy bombings
in Kenya and Tanzania, and three individuals who plotted an attack
against John F. Kennedy Airport in 2007, have also recently begun
serving life sentences.
And convictions have been obtained in the cases of several homegrown extremists, as well.
For example, last year, United States citizen and North
Carolina resident Daniel Boyd pleaded guilty to conspiracy to provide
material support to terrorists and conspiracy to murder, kidnap, maim,
and injure persons abroad; and U.S. citizen and Illinois resident
Michael Finton pleaded guilty to attempted use of a weapon of mass
destruction in connection with his efforts to detonate a truck bomb
outside of a federal courthouse.

I could go on.
Which is why the calls that I’ve heard to ban the use of
civilian courts in prosecutions of terrorism-related activity are so
baffling, and ultimately are so dangerous.
These calls ignore reality.
And if heeded, they would significantly weaken – in fact, they
would cripple – our ability to incapacitate and punish those who attempt
to do us harm.

Simply put, since 9/11, hundreds of individuals have been convicted of
terrorism or terrorism-related offenses in Article III courts and are
now serving long sentences in federal prison.
Not one has ever escaped custody.
No judicial district has suffered any kind of retaliatory attack. These are facts, not opinions.
There are not two sides to this story.
Those who claim that our federal courts are incapable of
handling terrorism cases are not registering a dissenting opinion — they
are simply wrong.

But federal courts are not our only option.
Military commissions are also appropriate in proper
circumstances, and we can use them as well to convict terrorists and
disrupt their plots.
This Administration’s approach has been to ensure that the
military commissions system is as effective as possible, in part by
strengthening the procedural protections on which the commissions are
based.
With the President’s leadership, and the bipartisan backing of
Congress, the Military Commissions Act of 2009 was enacted into law.
And, since then, meaningful improvements have been implemented.

It’s important to note that the reformed commissions draw from the same
fundamental protections of a fair trial that underlie our civilian
courts.
They provide a presumption of innocence and require proof of guilt beyond a reasonable doubt.
They afford the accused the right to counsel – as well as the right to present evidence and cross-examine witnesses.
They prohibit the use of statements obtained through torture or cruel, inhuman, or degrading treatment.
And they secure the right to appeal to Article III judges – all the way to the United States Supreme Court.
In addition, like our federal civilian courts, reformed
commissions allow for the protection of sensitive sources and methods of
intelligence gathering, and for the safety and security of
participants.

A key difference is that, in military commissions, evidentiary rules
reflect the realities of the battlefield and of conducting
investigations in a war zone.
For example, statements may be admissible even in the absence
of Miranda warnings, because we cannot expect military personnel to
administer warnings to an enemy captured in battle.
But instead, a military judge must make other findings – for
instance, that the statement is reliable and that it was made
voluntarily.

I have faith in the framework and promise of our military commissions,
which is why I’ve sent several cases to the reformed commissions for
prosecution. There is, quite simply, no inherent contradiction between
using military commissions in appropriate cases while still prosecuting
other terrorists in civilian courts.
Without question, there are differences between these systems that must be – and will continue to be – weighed carefully.
Such decisions about how to prosecute suspected terrorists are core Executive Branch functions.
In each case, prosecutors and counterterrorism professionals
across the government conduct an intensive review of case-specific facts
designed to determine which avenue of prosecution to pursue.

Several practical considerations affect the choice of forum.

First of all, the commissions only have jurisdiction to prosecute
individuals who are a part of al Qaeda, have engaged in hostilities
against the United States or its coalition partners, or who have
purposefully and materially supported such hostilities.
This means that there may be members of certain terrorist
groups who fall outside the jurisdiction of military commissions
because, for example, they lack ties to al Qaeda and their conduct does
not otherwise make them subject to prosecution in this forum.
Additionally, by statute, military commissions cannot be used to try U.S. citizens.

Second, our civilian courts cover a much broader set of offenses than
the military commissions, which can only prosecute specified offenses,
including violations of the laws of war and other offenses traditionally
triable by military commission. This means federal prosecutors have a
wider range of tools that can be used to incapacitate suspected
terrorists.
Those charges, and the sentences they carry upon successful
conviction, can provide important incentives to reach plea agreements
and convince defendants to cooperate with federal authorities.

Third, there is the issue of international cooperation.
A number of countries have indicated that they will not
cooperate with the United States in certain counterterrorism efforts —
for instance, in providing evidence or extraditing suspects – if we
intend to use that cooperation in pursuit of a military commission
prosecution.
Although the use of military commissions in the United States
can be traced back to the early days of our nation, in their present
form they are less familiar to the international community than our
time-tested criminal justice system and Article III courts.
However, it is my hope that, with time and experience, the
reformed commissions will attain similar respect in the eyes of the
world.

Where cases are selected for prosecution in military commissions,
Justice Department investigators and prosecutors work closely to support
our Department of Defense colleagues.
Today, the alleged mastermind of the bombing of the U.S.S. Cole is being prosecuted before a military commission.
I am proud to say that trial attorneys from the Department of
Justice are working with military prosecutors on that case, as well as
others.

And we will continue to reject the false idea that we must choose
between federal courts and military commissions, instead of using them
both.
If we were to fail to use all necessary and available tools at
our disposal, we would undoubtedly fail in our fundamental duty to
protect the Nation and its people.
That is simply not an outcome we can accept.

This Administration has worked in other areas as well to ensure that
counterterrorism professionals have the flexibility that they need to
fulfill their critical responsibilities without diverging from our laws
and our values.
Last week brought the most recent step, when the President issued procedures under the National Defense Authorization Act.
This legislation, which Congress passed in December, mandated
that a narrow category of al Qaeda terrorist suspects be placed in
temporary military custody.

Last Tuesday, the President exercised his authority under the statute to
issue procedures to make sure that military custody will not disrupt
ongoing law enforcement and intelligence operations — and that an
individual will be transferred from civilian to military custody only
after a thorough evaluation of his or her case, based on the considered
judgment of the President’s senior national security team.
As authorized by the statute, the President waived the
requirements for several categories of individuals where he found that
the waivers were in our national security interest.
These procedures implement not only the language of the statute
but also the expressed intent of the lead sponsors of this legislation.
And they address the concerns the President expressed when he signed this bill into law at the end of last year.

Now, I realize I have gone into considerable detail about tools we use
to identify suspected terrorists and to bring captured terrorists to
justice.
It is preferable to capture suspected terrorists where feasible
– among other reasons, so that we can gather valuable intelligence from
them – but we must also recognize that there are instances where our
government has the clear authority – and, I would argue, the
responsibility – to defend the United States through the appropriate and
lawful use of lethal force.

This principle has long been established under both U.S. and international law.
In response to the attacks perpetrated – and the continuing
threat posed – by al Qaeda, the Taliban, and associated forces, Congress
has authorized the President to use all necessary and appropriate force
against those groups.
Because the United States is in an armed conflict, we are
authorized to take action against enemy belligerents under international
law.
The Constitution empowers the President to protect the nation from any imminent threat of violent attack.
And international law recognizes the inherent right of national self-defense.
None of this is changed by the fact that we are not in a conventional war.

Our legal authority is not limited to the battlefields in Afghanistan.
Indeed, neither Congress nor our federal courts has limited the
geographic scope of our ability to use force to the current conflict in
Afghanistan.
We are at war with a stateless enemy, prone to shifting operations from country to country.
Over the last three years alone, al Qaeda and its associates
have directed several attacks – fortunately, unsuccessful – against us
from countries other than Afghanistan.
Our government has both a responsibility and a right to protect this nation and its people from such threats.

This does not mean that we can use military force whenever or wherever we want.
International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally.
But the use of force in foreign territory would be consistent
with these international legal principles if conducted, for example,
with the consent of the nation involved – or after a determination that
the nation is unable or unwilling to deal effectively with a threat to
the United States.

Furthermore, it is entirely lawful – under both United States law and
applicable law of war principles – to target specific senior operational
leaders of al Qaeda and associated forces.
This is not a novel concept.
In fact, during World War II, the United States tracked the
plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces
in the attack on Pearl Harbor and the Battle of Midway – and shot it
down specifically because he was on board.
As I explained to the Senate Judiciary Committee following the
operation that killed Osama bin Laden, the same rules apply today.

Some have called such operations “assassinations.”
They are not, and the use of that loaded term is misplaced.
Assassinations are unlawful killings.
Here, for the reasons I have given, the U.S. government’s use
of lethal force in self defense against a leader of al Qaeda or an
associated force who presents an imminent threat of violent attack would
not be unlawful — and therefore would not violate the Executive Order
banning assassination or criminal statutes.

Now, it is an unfortunate but undeniable fact that some of the threats
we face come from a small number of United States citizens who have
decided to commit violent attacks against their own country from abroad.
Based on generations-old legal principles and Supreme Court
decisions handed down during World War II, as well as during this
current conflict, it’s clear that United States citizenship alone does
not make such individuals immune from being targeted.
But it does mean that the government must take into account all
relevant constitutional considerations with respect to United States
citizens – even those who are leading efforts to kill innocent
Americans.
Of these, the most relevant is the Fifth Amendment’s Due
Process Clause, which says that the government may not deprive a citizen
of his or her life without due process of law.

The Supreme Court has made clear that the Due Process Clause does not
impose one-size-fits-all requirements, but instead mandates procedural
safeguards that depend on specific circumstances.
In cases arising under the Due Process Clause – including in a
case involving a U.S. citizen captured in the conflict against al Qaeda –
the Court has applied a balancing approach, weighing the private
interest that will be affected against the interest the government is
trying to protect, and the burdens the government would face in
providing additional process.
Where national security operations are at stake, due process takes into account the realities of combat.

Here, the interests on both sides of the scale are extraordinarily weighty.
An individual’s interest in making sure that the government does not target him erroneously could not be more significant.
Yet it is imperative for the government to counter threats
posed by senior operational leaders of al Qaeda, and to protect the
innocent people whose lives could be lost in their attacks.

Any decision to use lethal force against a United States citizen – even
one intent on murdering Americans and who has become an operational
leader of al-Qaeda in a foreign land – is among the gravest that
government leaders can face.
The American people can be – and deserve to be – assured that
actions taken in their defense are consistent with their values and
their laws.
So, although I cannot discuss or confirm any particular program
or operation, I believe it is important to explain these legal
principles publicly.

Let me be clear:
an operation using lethal force in a foreign country, targeted
against a U.S. citizen who is a senior operational leader of al Qaeda or
associated forces, and who is actively engaged in planning to kill
Americans, would be lawful at least in the following circumstances:
First, the U.S. government has determined, after a thorough and careful
review, that the individual poses an imminent threat of violent attack
against the United States; second, capture is not feasible; and third,
the operation would be conducted in a manner consistent with applicable
law of war principles.

The evaluation of whether an individual presents an “imminent threat”
incorporates considerations of the relevant window of opportunity to
act, the possible harm that missing the window would cause to civilians,
and the likelihood of heading off future disastrous attacks against the
United States.
As we learned on 9/11, al Qaeda has demonstrated the ability to
strike with little or no notice – and to cause devastating casualties.
Its leaders are continually planning attacks against the United
States, and they do not behave like a traditional military – wearing
uniforms, carrying arms openly, or massing forces in preparation for an
attack.
Given these facts, the Constitution does not require the
President to delay action until some theoretical end-stage of planning –
when the precise time, place, and manner of an attack become clear.
Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.

Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question.
It may depend on, among other things, whether capture can be
accomplished in the window of time available to prevent an attack and
without undue risk to civilians or to U.S. personnel.
Given the nature of how terrorists act and where they tend to
hide, it may not always be feasible to capture a United States citizen
terrorist who presents an imminent threat of violent attack.
In that case, our government has the clear authority to defend the United States with lethal force.

Of course, any such use of lethal force by the United States will comply
with the four fundamental law of war principles governing the use of
force.
The principle of necessity requires that the target have definite military value.
The principle of distinction requires that only lawful targets –
such as combatants, civilians directly participating in hostilities,
and military objectives – may be targeted intentionally.
Under the principle of proportionality, the anticipated
collateral damage must not be excessive in relation to the anticipated
military advantage.
Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.

These principles do not forbid the use of stealth or technologically advanced weapons.
In fact, the use of advanced weapons may help to ensure that
the best intelligence is available for planning and carrying out
operations, and that the risk of civilian casualties can be minimized or
avoided altogether.

Some have argued that the President is required to get permission from a
federal court before taking action against a United States citizen who
is a senior operational leader of al Qaeda or associated forces.
This is simply not accurate.
“Due process” and “judicial process” are not one and the same, particularly when it comes to national security.
The Constitution guarantees due process, not judicial process.

The conduct and management of national security operations are core
functions of the Executive Branch, as courts have recognized throughout
our history.
Military and civilian officials must often make real-time
decisions that balance the need to act, the existence of alternative
options, the possibility of collateral damage, and other judgments – all
of which depend on expertise and immediate access to information that
only the Executive Branch may possess in real time.
The Constitution’s guarantee of due process is ironclad, and it
is essential – but, as a recent court decision makes clear, it does not
require judicial approval before the President may use force abroad
against a senior operational leader of a foreign terrorist organization
with which the United States is at war – even if that individual happens
to be a U.S. citizen.

That is not to say that the Executive Branch has – or should ever have –
the ability to target any such individuals without robust oversight.
Which is why, in keeping with the law and our constitutional
system of checks and balances, the Executive Branch regularly informs
the appropriate members of Congress about our counterterrorism
activities, including the legal framework, and would of course follow
the same practice where lethal force is used against United States
citizens.

Now, these circumstances are sufficient under the Constitution for the
United States to use lethal force against a U.S. citizen abroad – but it
is important to note that the legal requirements I have described may
not apply in every situation – such as operations that take place on
traditional battlefields.

The unfortunate reality is that our nation will likely continue to face
terrorist threats that – at times – originate with our own citizens.
When such individuals take up arms against this country – and
join al Qaeda in plotting attacks designed to kill their fellow
Americans – there may be only one realistic and appropriate response.
We must take steps to stop them – in full accordance with the Constitution.
In this hour of danger, we simply cannot afford to wait until deadly plans are carried out – and we will not.

This is an indicator of our times – not a departure from our laws and our values.
For this Administration – and for this nation – our values are clear.
We must always look to them for answers when we face difficult questions, like the ones I have discussed today.
As the President reminded us at the National Archives, “our
Constitution has endured through secession and civil rights, through
World War and Cold War, because it provides a foundation of principles
that can be applied pragmatically; it provides a compass that can help
us find our way.”

Our most sacred principles and values – of security, justice and liberty
for all citizens – must continue to unite us, to guide us forward, and
to help us build a future that honors our founding documents and
advances our ongoing – uniquely American – pursuit of a safer, more
just, and more perfect union.
In the continuing effort to keep our people secure, this
Administration will remain true to those values that inspired our
nation’s founding and, over the course of two centuries, have made
America an example of strength and a beacon of justice for all the
world. This is our pledge.

Thank you for inviting me to discuss these important issues with you today."